Arizona Government Lesson 7: Judges and Judicial Selection in Arizona
Question 7: How are Supreme Court justices selected in Arizona?
- Nominated by the governor and confirmed by the senate.
- Proposed by a commission, nominated by the governor, and retained by voters in noncompetitive elections.
- Chosen by the voters in competitive, partisan elections and reelected by the same.
- Chosen by the voters in competitive, nonpartisan elections and reelected by the same.
Background
There have generally been three basic ways to choose state judges in America: appointment after senate confirmation (often called the federal model), competitive elections, and the “Missouri Plan” in which governors nominate and voters then retain (keep) judges. (Some states mix components of these different methods). Arizona uses a modified version of the Missouri Plan to select its appellate judges and many of its other judges as well.
Although the federal model, or a similar model using fixed rather than life terms, had been most common at the Founding, in the mid19th century, new states joining the Union used judicial elections, and many of the older states adopted them too. The basic theory behind judicial election was that it gave judges the legitimacy to rule against lawbreaking state legislatures, plus a level of popular control if judges really did begin to abuse their power as some early critics of the US Constitution had feared.
Initially these elections were competitive and partisan elections; in the Progressive Era, wariness of political parties and partisanship caused many states to shift to nonpartisan competitive races instead, contending judicial independence should include independence from parties. Several states made this change permanently, but others switched back to partisan elections. Those defending partisan elections concluded that nonpartisan elections actually forced judges to be more political since they could not rely on party support; to the extent the parties have developed different judicial philosophies, they also, according to this critique, deprive citizens of at least the minimal signal that comes from a party label.
Adopting the federal model, with its high level of judicial independence, was an obvious nonstarter here in Arizona. If the state was willing to pick a fight with President William Howard Taft, and threaten statehood, over the desire to recall judges, it was certainly not going to give them lifetime appointments. Thus, Arizona implemented competitive elections, though it gave judges relatively long terms, four or six years, compared to two for most other elected positions. However, because the governor could appoint judges to fill vacancies, in practice, most judges initially took office upon gubernatorial appointment, but would then be subject to competitive elections to keep their offices.
In the mid-20th century, another model, ostensibly a hybrid of the other two, developed. This was called the Missouri Plan, after one of the earliest states to adopt it. (California experimented with a similar system a few years before, but the modern version was first used in Missouri).
The core Missouri plan usually includes three features, though there is some variety on the first stage. The basic idea of all the variants is to give the judges the independence from political machines and campaigning that comes from the federal model, while still retaining a modicum of accountability from the elected model, as well as professionalism that comes from input from legal leaders.
In the first stage, a commission creates a list of eligible judicial candidates.
Initially such commissions were predominantly assembled from the membership of the local bar association (the association of lawyers); but in more recent years some states have modified the Missouri Plan to reduce the role of the bar and others have considered eliminating it altogether. Such critiques have been made on the grounds either that the Bar Association was not ideologically neutral—in effect, that it was a biased interest group—or more fundamentally, that giving an unelected interest group such a massive influence over the judiciary is undemocratic.
In the second stage of the Missouri Plan, the governor chooses from the list given by the selection commission, such as from a pool of five candidates. Finally, in the third stage, every few years (often around ten), judges must face a noncompetitive retention election. (It is six years for supreme court justices in Arizona, for example). In a retention election, voters are not asked to choose between the sitting judge and a challenger, but simply whether the judge should keep his or her job. If the citizens vote yes, the judge stays; if the citizens vote no, a judicial opening is created and the process begins anew.
In 1974, Arizona followed the example of several other states and adopted a partial Missouri plan. Lower court judges would generally continue to be elected in competitive elections in counties with fewer than 250,000 people, but appellate judges, and lower court judges in more populous counties, or in any county that opted into the system, would be subject to the retention model.
Arizona’s Missouri plan was modified in 1992, and today, the nominating commission is made of 5 attorneys appointed by the state bar association, and 10 non attorneys, themselves nominated by the governor and confirmed by the Senate. The Chief Justice also serves as a member, largely to break ties.
Although Arizona rejected the federal model of choosing judges, it broadly adopted the structure of the federal judiciary. While there are additional lower courts for minor issues, the basic structure of Arizona’s judiciary is the same three-tiered model used by the US government. At the basic level, both Arizona and the United States have trial courts (called superior courts in Arizona and district courts in the federal government). Above them are two levels of appellate courts—meaning they take appeals from trial courts. (The appellate courts that make up the intermediate level of the judiciary are called circuit courts in the federal system; Arizona is part of the 9th Circuit.) In both Arizona and the United States, the second layer of appellate courts is a Supreme Court. The justices of Arizona’s Supreme Court has the last word regarding Arizona law, although on issues applying the US Constitution the U.S. Supreme Court can take appeals from Arizona’s top court.
(note: this material can be paired with Questions 55 and 56 of the main Civic Literacy Curriculum.
Introduction
Arizona has used several methods to select judges in its history; other states use many others. In this exercise, students will write op-eds arguing whether Arizona should keep its Missouri plan, modify its Missouri plan, or replace it with a model used in another state.
Preparation
Provide each group with a copy of How to Write an Editorial and an Editorial Template (both available at CLC Question 63)
Provide each group with a copy of the background above and History of Judicial Independence in America.
Instructions
The newspaper’s staff can write editorials but they can also be submitted by individuals, both as individuals or a team. Explain to the students that they will write editorials for the local paper about the process of selecting judges. Their editorial will be based on their existing knowledge and the provided reading.
Brainstorm with the students on the advantages and disadvantages of the following systems. (Alternatively, you can have the students do this in their groups.)
Federal model (nomination by executive, confirmation by senate), with either fixed or lifetime terms
Competitive elections (either partisan or nonpartisan)
iii. Missouri plan (either larger or smaller bar association presence)
You may wish to emphasize the following:
You are not grading them on their opinions. This exercise aims to write an editorial and share their opinion with the public (e.g., the class). It is not to make an argument that everyone likes or agrees with.
Review the editorial guidelines with the students and help them narrow their topics down as needed.
Have them create an outline or rough draft on the template before writing a final copy.
Circulate throughout the room as the students complete their letters to check for understanding and help as needed.
Have them write the final copy on a clean sheet of looseleaf paper.
Ask some of the students to read their editorials and then use those pieces to stimulate a discussion on the selection of judges.
Prompt 1: What are the various methods used to select appellate judges in Arizona, including Supreme Court justices, and in what ways might these methods impact the judiciary?
Prompt 2: In what ways might having the Arizona Supreme Court serve as the supreme interpreter for the Constitution and laws of Arizona, while leaving federal law interpretation to the federal courts, benefit the state's legal landscape?
There are three main ways that states in the U.S. pick their judges: appointment (where a leader picks a judge and lawmakers approve), competitive elections (where judges run for office like politicians), and a system called the "Missouri Plan." Arizona uses a version of the Missouri Plan to choose many of its judges.
In the beginning, most states followed the federal model, which was based on the U.S. Constitution and involved appointing judges. But in the 1800s, many states switched to electing their judges. People liked this because it gave them more control over who the judges were and kept judges accountable to the public. Some of these elections were partisan, meaning judges ran as members of a political party. Later, many states changed to nonpartisan elections where judges ran without party labels. This was done to keep judges more independent from politics. However, some states went back to partisan elections because people felt party labels made it easier to understand the judges' views.
Arizona didn’t want the federal model because it prefers more control over its judges. At first, Arizona had competitive elections for its judges. But over time, the state began to use the Missouri Plan.
The Missouri Plan mixes the appointment process with elections. Here’s how it works in Arizona:
1. A group of people (called a commission) looks at the qualifications of different lawyers who want to be judges and creates a list of candidates.
2. The governor then picks a judge from that list.
3. After a few years, the judge must go through a “retention election.” In this election, voters decide whether the judge should keep their job or be replaced. There is no challenger; people simply vote “yes” or “no.”
Arizona first started using a version of this plan in 1974. Some counties still elect their judges, but all of the higher-level judges, and all judges in bigger counties, are picked through the Missouri Plan system.
The Missouri Plan in Arizona was updated in 1992. Now, the commission that helps pick judges includes both lawyers and regular citizens. The governor appoints many of these commission members, and the state Senate has to approve them.
Arizona’s courts are structured like the U.S. court system. There are three main levels:
1. Superior Courts – These are the trial courts, where most cases begin.
2. Appellate Courts – These courts handle appeals from the trial courts.
3. Supreme Court – This is the highest court in Arizona, and it has the final say on Arizona law. However, if a case involves the U.S. Constitution, it can be appealed to the U.S. Supreme Court.
Vocabulary List:
1. Appointment – When a leader chooses someone for a job, like picking a judge.
2. Competitive Elections – Elections where candidates run against each other, and voters choose who they want.
3. Missouri Plan – A method where judges are picked by the governor from a list, then voters decide if they stay in office.
4. Retention Election – An election where voters choose if a judge keeps his or her job.
5. Commission on Nominations – A group of people who propose a list of judges for the governor to choose from.
6. Appellate Courts – Courts that hear appeals from lower courts.
7. Supreme Court – The highest court in the state or country.
8. Bar Association – An organization for lawyers.
9. Governor – The leader of a state.
10. Veto – The power to stop a new law from being passed.
There are different ways that states pick judges in the U.S., and Arizona uses a method called the "Missouri Plan" to choose many of its judges.
In some states, judges are picked by the governor (the leader of the state), and other leaders decide if the choice is okay. In other states, judges run in elections, and people vote for them just like they vote for other leaders. A third way is the Missouri Plan, which combines the two. Arizona uses this plan for most of its higher-level judges.
Here’s how the Missouri Plan works in Arizona:
1. A group of people (called a commission) looks at lawyers who want to become judges and creates a list of candidates.
2. The governor picks a judge from that list.
3. After a few years, the judge goes through a “retention election,” where voters decide if the judge should keep the job. There are no other candidates—people just vote “yes” or “no.”
Arizona first started using this plan in 1974. For smaller counties, judges are still elected in regular elections. But in most cases, especially for higher courts, Arizona uses the Missouri Plan.
In Arizona, there are three levels of courts:
1. Superior Courts – These are the courts where most cases start.
2. Appellate Courts – These are courts that review cases from the lower courts to see if any mistakes were made.
3. Supreme Court – This is the highest court in Arizona, and it makes the final decisions about Arizona laws. But if the case involves the U.S. Constitution, it can be taken to the U.S. Supreme Court.
Vocabulary List:
1. Governor – The leader of a state.
2. Judge – A person in charge of making decisions in court.
3. Missouri Plan – A method of picking judges where the governor chooses from a list, and voters decide if the judge keeps their job.
4. Retention Election – An election where people vote “yes” or “no” on whether a judge stays in their position.
5. Commission – A group that helps decide who can be chosen as a judge.
6. Appellate Courts – Courts that look at cases to check for mistakes.
7. Supreme Court – The highest court in a state or country.